IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 031 OF 2011

BETWEEN:

SAIRUSI SOKO
Appellant

AND:

STATE
Respondent

Ms. S. Kiran for the State
Appellant In Person

Dates of Hearing: 6th, 17th November, 2011.
Date of Judgment: 29th November, 2011.

JUDGMENT
__________________

[1] In the Magistrates Court at Lautoka on the 30th June, 2011 the appellant entered a plea of guilty to one charge of theft, contrary to Section 291(1) of the Crimes Decree 2009. He admitted to having stolen a 40HP outboard engine, valued at $3000.00, a wheelbarrow the engine was resting in, and a mobile phone all taken from the home of one Prem Krishna Naicker on the 24th May 2011.

[2] In mitigation he said that he was a farmer looking after his father. He asked for forgiveness and an extra mural sentence.

[3] He was sentenced on the 9th August 2011 to a term of imprisonment of two years and six months. The Magistrate allowing him a credit of six months for "mitigatory features" which is assumed to mean his plea of guilty although the Magistrate does not specifically say so.

[4] The applicants' ground of appeal are:

(i) Time spent in remand not credited.

(ii) The Magistrate considered impermissible aggravating features.

(iii) Not enough discount for early plea.

(iv) Sentence is harsh and excessive.

[5] Both the appellant and State have filed written submissions, with Ms. Kiran very fairly conceding some but not all of the grounds relied on by the appellant.

 Ground One (No credit for remand)

[6] The appellant was convicted on his first appearance in the Magistracy and remanded in custody until he was sentenced on the 9th August, 2011. He was therefore held in remand for 6 weeks. The Magistrate did not take this period into account, nor should he have. It appears that he was being held in remand for other matters as well. This ground fails.

[7] Ground Two (Inappropriate aggravating features)

In his sentence the Magistrate found to be aggravating the following features:

 (i) The stolen items were worth a large amount of money.

 (ii) Only one item was recovered.

 (iii) The offence is prevalent.

Items being recovered are often points of mitigation relied on by convicted accused persons, but it's not appropriate to reverse the point and make lack of recovery an aggravating feature. It is noteworthy however that the item recovered, (the outboard motor) was only recovered because the appellant was detected trying to sell it. He certainly did not surrender it to the Police or to the complainant. Theft is a very prevalent offence (and has been for decades) but as Ms. Kiran point out that is a general complaint and not a peculiar to this offender or this offence. Neither am I convinced that an outboard of $3,000.00, a phone of $90 and a wheelbarrow of $30 are items worth a large amount of money. I agree with the appellant that the aggravating features adopted in this case are inappropriate and do not warrant enhancement by 12 months.

[8] Ground III (No allowance for guilty plea)
 
The Magistrate has not said as much but he did allow 6 months for mitigation which he claimed to be a plea of guilty and his remorse. Six months for a very early plea of guilty is not enough discount on the interim sentence the Magistrate had arrived at (that is 36 months). Twelve months would have been far more appropriate. Pleas at first opportunity are very valuable to the administration of justice – Court time is saved, witnesses are spared and the case is disposed of immediately. Very early pleas should attract a discount of one third and later pleas discounts of proportionately less.

[9] Final Sentence

The final sentence arrived at, despite errors on the way, is high but not manifestly excessive. The appellant has thirteen previous convictions all current, and I declare him to be an habitual offender pursuant to Section 10(c) of the Sentencing and Penalties Decree.

[10] The appeal succeeds as to aggravating features, and insufficient credit for the plea; but given that he is now to be regarded as an habitual offender, I consider that no substantial miscarriage of justice has occurred and pursuant to Section 256(s)(f), the appeal is dismissed.

P.K. Madigan
JUDGE

At Lautoka
29 November 2011