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Maharaj v State [2011] FJHC 676; HAA33.2011 (31 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NOS: HAA 33 Of 2011 [MC Ltka.: 400/2009]
HAA 26 OF 2011 [MC Ba: 288/2010]

BETWEEN

DINESH MAHARAJ
THE APPELLANT

AND

STATE
THE RESPONDENT

Appellant in person
Ms S Kiran - Counsel for the State in HAA 33/2011
Mr. S Babitu - Counsel for the State in HAA 26/2011

Date of Hearing : 25 October 2011
Date of Judgement : 31 October 2011

JUDGEMENT

1. The appellant appeals against the two sentences imposed by the learned Magistrates of Lautoka and Ba in the two cases bearing Nos. 400/2009 and 288/2010 respectively. The two appeals were consolidated at the hearing as the relief claimed by the appellant is interrelated.
   
2. (i) In Magistrate's Court (MC), Lautoka, Case No 400/2009, the appellant stood charged for having committed the offences of burglary and larceny punishable under Sections 299 (a) and 270 of the Penal Code respectively. The offences were committed on 11 July 2009.
   

(ii) Learned Magistrate, in his sentencing ruling dated 23 August 2011, imposed terms of thirty (30) and twelve (12) month imprisonment for each offence. The terms were ordered to be concurrent with each other.

(iii) In arriving at final sentences, the learned Magistrate picked-up starting points of thirty (30) and twelve (12) months for the two offences, having regard inter alia to the sixteen previous convictions had against the appellant. Learned Magistrate, thereafter in his own judgement, varied the base sentence to accommodate aggravating and mitigatory factors and returned to (30) and twelve (12) month periods of imprisonment.

3. The appellant, by the date of the above sentence, had been subject to a term of nineteen (19) month imprisonment with a non-parole period of fourteen (14) months with effect from 14 February 2011 for offences of aggravated burglary and theft under the Crimes Decree No 44 of 2009 (the Crimes Decree) in Lautoka MC Case No 547/2010 [High Court Appeal No HAA 014/2011]. The date of offences was 03 July 2010.
   
4. Acting under Section 20 of the Sentencing and Penalties Decree No 42 of 2009, learned Magistrate, Lautoka, fixed a new single non-parole period of twenty four (24) months for the sentence imposed by him; and, for the sentence of nineteen (19) months that the appellant had by then been subject to, as noted above.
   
5. (i) In Magistrate's Court, Ba, Case No 288/2010, the appellant stood charged for having committed the offences of aggravated burglary and theft punishable under Sections 313 (1) (a) and 291(1) of the Crimes Decree respectively. The offences were committed on 04 August 2010.
   

(ii) Learned Magistrate, in his order dated 12 August 2011, imposed twelve (12) month imprisonment each for the two offences. He ordered the two sentences to be concurrent with each other; but, ordered it to run consecutive to the existing term of nineteen (19) month imprisonment (with a fourteen (14) month non-paroled period) in Lautoka MC Case No.547/2010, referred to above.

(iii) In making the above orders, the learned Magistrate, Ba, relied on eighteen (18) month imprisonment as starting points for the two offences despite the appellant, according to the learned Magistrate, having fourteen (14) previous convictions, four of which were for identical offences. He also did not endeavour to find any aggravating factors. Instead, he proceeded to offer the full 1/3 discount for the guilty plea although it was not tendered at the earliest possible opportunity.

6. The relief sought by the appellant in these two appeals is that the sentence of thirty (30) month imprisonment in MC, Lautoka, Case No 400/2009 be shortened to be on par with the existing sentence in Case No 547/2010; and, the sentence of 12 months in MC, Ba, Case No 288/2010 be made concurrent with the same existing sentence in Case No 547/2010 so that all three sentences could be exhausted at or around the same point of time.

7. I have considered the appeals of the appellant, his written and oral submissions. I am also mindful that, in granting leave to appeal out of time, this court had informed the appellant that he would risk his terms getting enhanced in the exercise of the appellate powers of this court under Section 256 of the Criminal Procedure Decree No 43 of 2009 (the Criminal Procedure Decree).

8. Ms S Kiran, learned State Counsel, appearing in Case No HAA 33 /2011 submitted that she was content with the sentence awarded by the learned Magistrate, Lautoka, in Case No 400/2009 and submitted that the learned Magistrate was correct in awarding concurrent sentences.

9. I find that the learned Magistrate, Lautoka, had applied applicable tariffs correctly in line with aggravating and mitigatory factors in the above case.

10. Mr S Babitu, learned State Counsel appearing in Case No HAA 26/2011, submitted that the order of the learned Magistrate, Ba, for the aggregate sentence of twelve (12) months to run consecutive to the existing sentence in Case No 547/2010 was correct as the learned Magistrate had determined the appellant to be a habitual offender. Learned State Counsel relied on State v Kamikamica [2011] FJHC 81; 21 Feb. 2011, in support of the sentence of the learned Magistrate, Ba, as to the choice of starting points and the application of principles in regard to aggravating and mitigatory factors.

11. I have carefully examined the contents of the ruling on the sentence in State v Kamikamica, which was relied on by Mr Babitu in support of the orders of the learned Magistrate, Ba in Case No. 288/2010.

12. I find that the learned Magistrate had reproduced the ruling in State v Kamikamica verbatim, almost in its entirety, in handing down the sentence. The learned Magistrate, therefore, does not seem to have used his own and independent judgement in making his orders; and, in the process he has fallen into manifold errors.

13. The offence of burglary in the case under reference was committed around 1.30 in the midnight having invaded the privacy of the complainants. The intrusion posed a physical threat and psychological trauma to the inmates of the dwelling, who were legitimately entitled, as of right, to have a peaceful midnight sleep without being subjected to pernicious crimes.

14. As regards the offence of theft, the value of the property was $ 7892.00. Substantial amount of the property was disposed of by the appellant making any restitution impossible; and only, some items to the value of $ 2700.00 were recovered, that again, from a third person.

15. The lower point of the tariff used in Kamikamica's case was, therefore, incorrect to have been used in this case in view of the force used to break into the dwelling. Moreover, as noted by the learned Magistrate, the appellant had had fourteen previous convictions, four of which were for similar offences. Furthermore, the learned Magistrate had no basis to rely on the 'substantial weight' attached to the very early guilty plea in Kamikamica's case because the plea before the learned Magistrate was not tendered at the earliest possible opportunity for the appellant to have the benefit of 1/3 reduction in the case. The learned Magistrate further has fallen into error when he did not apply his own judgement to consider the existence of aggravating factors independent of Kamikamica's case.

16. Moreover, it is not correct, in my view, for the learned Magistrate to have determined that the appellant was a habitual offender because such determination could only be made by a judge [of the High Court], the Court of Appeal or the Supreme Court under Part III of the Sentencing and Penalties Decree.

17. In the circumstances, the sentence of the learned Magistrate, Ba, in Case No 288/2010 should not be permitted to stand as it is flawed in many respects. I, accordingly, set aside the sentence and substitute it with a sentence of this court in the exercise of its appellate powers under Section 256 of the Criminal Procedure Decree.

18. I pick up the starting point of thirty (30) months, which is also consistent with the starting points in the other two cases referred to above, for the offence of burglary. I increase the sentence by six (06) months to reflect aggravating factors and reach at thirty six (36) months. I reduce six (06) months to denote the guilty plea, as it shows, although belated, a remorse and reach at thirty (30) months.

19. I, accordingly, sentence the appellant to a term of thirty (30) month imprisonment for the offence of burglary.

20. As regards the offence of theft, I take twelve (12) months as the starting point. I add six (06) months on account of the high value of the property. I add further four (04) months to penalise the appellant for his conduct of disposing of the property leaving no room for reasonable restitution and reach at the interim term of twenty two (22) months. I reduce the term by four (04) months for the belated guilty plea to reach eighteen (18) months.

21. I, accordingly, sentence the appellant to eighteen (18) month imprisonment for the offence of theft.

22. No mitigation was advanced to reduce the sentence in either occasion further. I, too, do not see any extenuating circumstances to effect any further reduction in the sentences.

23. I order that the two terms to run concurrent with each other. The appellant shall, accordingly, serve a term of thirty (30) months in imprisonment.

24. The sentence in Magistrate's Court, Bar, Case No 288/2010 dated 12 August 2011 stands set aside forthwith. An enhanced sentence of thirty (30) month imprisonment in its place is substituted upon consideration of the matters on appeal by this court in Appeal No HAA 26/2011. Relief sought by the appellant, accordingly, refused.

25. I do not see reasons to interfere with the sentence in Magistrate's Court, Lautoka, Case No 400/2009 dated 23 August 2011 upon consideration of the matters on appeal in Appeal No HAA 33/2011. The sentence in that case is affirmed and the appeal is, accordingly, dismissed.

26. Upon consideration of the provisions in Part III of the Sentencing and Penalties Decree read with Section 22 [of the Decree], I determine the appellant to be a habitual offender and order this sentence to run consecutive to the sentence of thirty (30) months [with a non-paroled period of twenty four (24) months] in MC, Lautoka, Case No 400/2009 dated 23 August 2011.

27. Acting under Section 20 of the Sentencing and Penalties Decree, I fix a single new non-parole period of thirty six (36) months for this sentence in MC, Ba, Case No 288/2010 [HAA 26/2011]; for the sentence in MC Lautoka Case No 400/2009 [HAA 33/2011]; and, for the sentence in MC Lautoka Case No. 547/2010 [HAA 014/2011]. The single new non-paroled sentence of thirty six (36) month imprisonment is deemed to have taken effect from 14 February 2011, the date on which the appellant began serving his sentence in MC Lautoka Case No 547/2010 [HAA 014/2011].

28. The two appeals dismissed. Sentence in HAA 26/2011 [MC, Ba, 288/2010] enhanced, as set-out above.

Priyantha Nawana
Judge

High Court
Lautoka
31 October 2011