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Waqavanua v State [2011] FJHC 247; HAA013.2011 (6 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION


Criminal Appeal No. HAA 013 of 2011


BETWEEN :


VILIAME WAQAVANUA
Appellant


AND:


STATE
Respondent


Appellant in Person
Ms L. Vateitei for the State


Date of Hearing : 27 April 2011
Date of Judgment: 06 May 2011


JUDGMENT


[1] On the 3rd February 2011 in the Nadi Magistrates Court, the appellant entered pleas of guilty to the following charges:


FIRST COUNT


Statement of Offence

BURGLARY: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009.


Particulars of Offence


VILIAME WAQAVANUA on the 1st day of January 2011 at Nadi in the Western Division entered the SSQ Barrack Namaka as a trespasser with intent to commit theft.


SECOND COUNT


Statement of Offence


THEFT: Contrary to section 291(1) of Crimes Decree No. 4 of 2009.


Particulars of Offence


VILIAME WAQAVANUA on the 1st day of January 2011 at Nadi in the Western Division dishonesty appropriated assorted items values at $260.00.


[2] He was sentenced to two years 6 months for the burglary and a concurrent term of two years for the theft; the total term of imprisonment being two years and 6 months.


[3] The appellant now appeals his sentence on the following grounds:


(i) the Magistrate failed to consider his mitigation advanced below.


(ii) the Magistrate "failed to follow sentencing guidelines".


The appellant could not explain what he meant by the second ground, he saying that a fellow inmate prepared his grounds.


[4] The facts admitted in the Court below were that on the 1st January 2011 at around noon the accused entered a dwelling house at SSQ Quarters, Namaka and stole a watch, a pen and leather belt all to the value of $260.00.


[5] The accused told the Magistrate he was a 20 year old student and apologized to the Court, saying he wanted to "reconcile".


[6] The Magistrate in recognizing that burglary carries a maximum penalty of life imprisonment, took a starting point of 3 years imprisonment reducing that to 2 for the plea of guilty. He increased that by six months for aggravating features of invasion of a private home, stealing goods to the value of $260 and lack of respect towards the victims personal property rights. He failed to give credit for the accused being a student because no proof was given for that and in any event the accused had three previous for similar offences.


[7] For the theft offence the Magistrate took a starting point of two years reducing that by nine months for the plea of guilty but increasing it by 6 months for the same aggravating features by six months bringing the sentence back to two years, which he made concurrent to the burglary.


[8] The maximum penalty for burglary is thirteen years imprisonment and not life as the Magistrate stated and the accepted tariff band for the offence set down under the old Penal Code is between 18 months to three years imprisonment (Tomasi Turuturuvesi – HAA 06/02S). Given that life imprisonment was the maximum penalty under the Penal Code, and the maximum is now thirteen years, then a proper tariff band for the offence of burglary under the Crimes Decree should be between twelve months to three years.


[9] Unfortunately the Magistrate fell into error by making elements of the offence aggravating features of the crime. If an accused pleads guilty to burglary (which is the unauthorized invasion of premises), then it cannot be said to be an aggravating feature that he invaded a private home. Similarly if an accused pleads guilty to theft, it cannot he said that it is an aggravating feature that he stole goods worth $260.


[10] The Magistrate gave the accused no credit for his mitigation; that is that he was young, he was remorseful and that he was a student. The Magistrate said that he had no proof that the accused was a student, but he did not consider his youth or his remorse. The fact that he had three similar previous convictions does not cancel out his mitigation; it just serves to deny him further credit for good character.


[11] There is nothing on record to show that this daylight burglary was unusually serious, so therefore the starting point of three years is too high (especially in the light of the Magistrate's misapprehension that the maximum penalty is life imprisonment).


[12] The sentence passed below is quashed pursuant to section 256(3) of the Criminal Procedure Decree and new sentences passed as follows:


For the burglary a starting point of two years reduced to 16 months for the plea of guilty. For the accused's remorse and young age that term is further reduced to a term of 12 months imprisonment. There are no discernable aggravating features.


For the theft, where there are no relevant aggravating features, similar term of twelve months is imposed to be served concurrently.


[13] The new total term of imprisonment is twelve months, to run from the 24th February, 2011.


Paul K. Madigan
JUDGE
At Lautoka
6 May 2011


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