IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

H.C. CRIMINAL CASE NO: HAM 036/2011
M. C. CRIMINAL CASE NO: 483/2011

BETWEEN:

RUSAITE DOIDOI
APPELLANT

AND:

STATE
RESPONDENT

Before: Priyantha Nawana J.

 Appellant in person
Ms K Semisi, State Counsel, for Respondent 

JUDGMENT

1.	The appellant appeals against the sentence imposed by the learned Magistrate of Lautoka in the above case on 09 September 2011.

2.	The sentence was sequel to convictions following the appellant's individual pleas of guilty in respect of the charges of 'Burglary' in Count No (1) and 'Theft' in Count No (2) under Sections 312 (1) and 291 (1) of the Crimes Decree No 44 of 2009.

3.	Particulars of the offences, as revealed by the charges and the summary of facts, were that the appellant, on 13 August 2011, stealthily entered into the dwelling of the complainant, Ms Nalini Latchmi Reddy, who had just returned to Fiji to attend on her sick grandmother. Upon seeing the complainant in the dining room of the house, the appellant, who had by then stolen two mobile telephones and Australian $ 500.00 in cash with a wallet, jumped out of the window and fled. After the arrest, the appellant, in his caution interview, admitted the offences being committed. The two mobile telephones had been disposed of, which, however, were recovered from two persons who later stood as witnesses for the prosecution. 

4.	Learned Magistrate, having considered separate pleas of guilty and the acceptance of the summary of facts by the appellant, imposed a term of twenty seven (27) month imprisonment for the count of 'Burglary'; and, a term of eleven (11) month imprisonment for the count of 'Theft'. 

5.	Learned Magistrate relied on a number of authorities and determined that the tariff for the offence of 'Burglary' was eighteen (18) months to three (03) years, while the tariff for the offence of 'Theft' was eighteen (18) months to three (03) years in the case of repeated offending. The learned Magistrate also correctly bore in mind the applicable legal provisions in regard to the imposition of an appropriate sentence on the appellant in terms of Section 4 of the Sentencing and Penalties Decree No 42 of 2009; and, the relevant principles on sentencing as enunciated in legal texts. 

6.	Starting points of twenty (27) and five (11) months were, accordingly, decided upon by the learned Magistrate in respect of the offences of 'Burglary' and 'Theft' respectively. Each term was increased by seven (07) months for the factors of:

(i)	Stolen property being not recovered;

(ii)	No attempt being made to compensate the complainant; and,

(iii)	The appellant enjoying the fruits of the crime,

which the learned Magistrate, in his view, found to have aggravated the offences.

7.	 Learned Magistrate, having arrived at interim terms of thirty four (34) months and eighteen (18) months for each offence, as applicable, reduced the terms by three (03) months on the basis of a combination of mitigatory factors being: 

(i)	The appellant co-operated with the police and admitted the offences;

(ii)	No physical injury or violence used; 

(iii)	No evidence of pre-planning; and,

(iv)	The appellant was remorseful and apologetic to court. 

Learned Magistrate further reduced three (03) months each for the early guilty plea and another one (01) month for the period of being on remand and arrived at twenty seven (27) and eleven (11) months. 

8.	Accordingly, the final sentence of twenty seven (27) and eleven (11) months in respect of each offence of 'Burglary' and 'Theft' was reached by the learned Magistrate. The sentences were ordered to run concurrently.

9.	Having dealt with the principles pertaining to the suspension of a term of imprisonment, the learned Magistrate did not find the circumstances in the case in favour of the appellant to suspend the aggregate sentence of twenty seven (27) month imprisonment as the appellant has had two suspended sentences in force by then during which the offences in this case were committed. 

10.	At the hearing of the appeal, it was submitted by the appellant that the sentences were harsh and excessive. The appellant specifically contended that the learned Magistrate did not correctly discount for his early guilty pleas in view of the failure by the learned Magistrate to reduce the sentences by a 1/3 each; and, that the enhancement of the sentences by seven (07) months for aggravating factors was excessive.

11.	Learned State Counsel submitted that the learned Magistrate had taken into account irrelevant factors in common for both offences in order to come to the conclusion that the offences attracted enhanced punishments based on those factors.

12.	I have considered the appeal of the appellant, his written submissions and those of the State in light of the facts of the case and applicable legal principles.

13.	The learned Magistrate, in my view, is correct on the applicable tariffs of sentences for the offences of 'Burglary' and 'Theft' in the circumstances of the case. The State, too, did not raise an issue on the applicability of the two tariffs for the two offences in this case; or, on the choice of the starting points. In the circumstances, I do not disturb the learned Magistrate's determination as to the starting points on the basis of the applicable tariffs.

14.	The main complaint of the appellant was with regard to the inadequate discount afforded to him for his early guilty plea. The State conceded that the reduction of the sentence only by three (03) months for the early guilty plea was inadequate and that such reduction was not in accord with the precedents as laid down in Maharaj v State [2011] FJHC 373 and Waqalevu v State [2010] FJHC 468.

15.	There is no rule as to how much of discount should be given to a plea of guilty. It is, nevertheless, almost hardened as a practice for courts to grant a discount approximately of 1/3 of the sentence for a plea of guilty that is tendered at the earliest possible opportunity by an accused-person, as could be seen from the above judicial precedents. This position was applied in the case of John Vodo Uluinabukelevu vs State FJHC [2011] 663 by this court.

16.	I agree with the submission of the learned State Counsel, as noted in paragraph 11 above, and hold that the learned Magistrate had erred in considering those factors to enhance the punishments of the two offences. I accordingly set-aside the terms of seven (07) months considered by the learned Magistrate to enhance the two sentences based on those factors. I also set-aside the terms reduced for alleged mitigatory factors as they are either found to be irrelevant or duplicated

17.	In my view, the real circumstances that aggravated the offence of burglary was the invasion of the privacy of the complainant and the inmates of the dwelling and the consequential infusion of fear and shock in them. I, accordingly, substitute those circumstances in place of the aggravating factors that the learned Magistrate took into account and increase the sentence for the offence of burglary by nine (09) months to reach thirty six (36) months at the interim. I reduce the sentence by 1/3 to denote the early guilty plea and arrive at a term of twenty four (24) months. I reduce the term by one (01) month to set-off three week remand period. I accordingly arrive at the term of twenty three (23) month imprisonment for the offence of burglary. I do not see any other factor to mitigate this sentence further.

18.	As regards the offence of theft, I hold that the disposal of the property operates as an aggravating circumstance for which I increase the sentence by seven (07) months. I reduce the sentence by 1/3 to denote the early guilty plea and arrive at a term of twelve (12) months. The fact that the appellant had co-operated with the police would operate as a mitigatory factor for which I reduce the sentence by one (01) month. I accordingly arrive at a term of eleven (11) month imprisonment for the offence theft. I do not see any other factor to mitigate this sentence further.

19.	In the result, I sentence the appellant for 'Burglary' in Count (1) to a term of twenty three (23) month imprisonment and to a further term of eleven (11) month imprisonment for the offence of 'Theft' in Count No (2). Both sentences shall run concurrent to each other.

Priyantha Nāwāna
Judge
High Court

Lautoka
31 January 2012.