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Lal v State [2014] FJHC 916; HAA34.2014 (12 December 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: 34OF 2014

BETWEEN:

RONEEL VINEEL LAL
Appellant

AND:

STATE
Respondent

Counsels: Ms. Senikavika L. Juita for the Appellant
Mr. Josaia B. Niudamu the Respondent

Date of Hearing: 11thDecember, 2014
Date of Judgment: 12thDecember, 2014

JUDGMENT

1. The appellant was charged before the Lautoka Magistrate Court with one count of

House breaking entering and larceny and one count of damaging property.

2. He pleaded guilty to both counts and convicted and on 1.7.2014 sentenced for 21 months imprisonment. Twelve months imprisonment is suspended for 3 years and to serve 9 months consecutive to the term he was serving.
   
3. This appeal against the sentence was filed on 25.7.2014 within time.
   
4. His grounds of appeal against the sentence are:
   
   • (i) That the Learned Magistrate erred in law and in principle when imposing the 12 months imprisonment sentence suspended for 3 years and 9 months imprisonment term to serve consecutive to current sentence as to the following:
     
     • (a) The learned Magistrate erred in law and in principle when he selected a starting point at the higher end of the tariff for both counts charged.
       
     • (b) The learned Magistrate erred in law and in principles when he did failed to consider a concurrent sentence for the appellant.
       
5. Both parties have filed written submissions.
   
6. The learned Magistrate had correctly identified the maximum punishment as 14 years for the first charge and 2 years for the 2nd charge.
   
7. The learned Magistrate followed the correct guide line judgments and identified the tariff for the 1st charge as 2-3 years and 2nd charge as 6 months to 18 months imprisonment.
   
8. The learned Magistrate had selected a starting point of 32 months. The reasons are given in paragraph 12 of the sentence.
   

'Circumstances of this offending is such that you have invaded the house of the complainant whilst the inmates were present and has thereby caused immense fear in their lives. You have totally disregarded the right to privacy of the complainant and his family. I therefore consider that the starting point under these circumstances should be in the upper level of the tariff brand. Thus I select 32 months imprisonment as the starting point of your sentence for the offence of House breaking and entering larceny.

I do not find any other aggravating factors as such in respect of this offence.'

9. The learned Magistrate had failed to follow the principle of good practice stated in Koroivuki v State [2013] FJXCA 15; AAU 0018.2010 (5th March 2013). The Supreme Court held:
   

'In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls outside either below or higher than the tariff, then the sentencing Court should provide reasons why the sentence is outside the range.'

10. The grounds identified by the learned Magistrate could be considered as aggravating factors and even if the starting point was 24 months, 8 months could have been added for the aggravating factors.
    
11. In Bae v State [1999] FJCA 21; AAU 0015u.98s (26 February 1999) the Court of Appeal held that:
    

"It is well established law that before this court can disturb the sentence; the appellant must demonstrate that the court below fell into error in exercising its sentencing discretion. If the trial Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some of the relevant considerations, then the appellate court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself. (House v The King [1936] HCA 40; (1936) 55 CLR 499)".

12. There will be no change in the final sentence even if the lowest in the tariff is considered and 8 months are added for the aggravating factors.
    
13. The starting point taken by the learned Magistrate for the 2nd count is 8 months. That is at the lower middle end of the tariff.
    
14. Therefore there is no merit in the ground that learned Magistrate erred in selecting the starting point for the both counts.
    

2nd Ground

15. The learned Magistrate had ordered the final sentence to run consecutive to the sentence the appellant is serving. The reasons are given in the paragraph 34 of the sentence.
    

'There are no facts before this court to suggest that the current term of imprisonment that you are serving has any overlap with the offences in this case or that such offence was committed in the same transaction.

Further, I have made available to you all possible concessions as the law permit and this sentence is not offending the totality theory.

As such the term of 09 months imprisonment term you shall serve consecutive to the current imprisonment term you are serving'.

16. The Section 22(1) of the Sentencing and Penalties Decree was given a wide interpretation by the Fiji Court of Appeal in Vukitoga v State [2013] FJCA 19;AAU 0049.2 008 (13 March 2013)
    

"[22] The situation that presents itself to the Court therefore, and a proposition advanced by counsel for the appellant is this: there being no guidance from authorities of higher courts on concurrent or consecutive sentencing, we are left only with the legislation (Sentencing and Penalties Decree) which states that subsequent sentences must be served concurrently with existing sentences.

[23] Guidance for this situation can still be gleaned from the earlier decision of the Supreme Court in Joji Waqasaqa v State [2006] FJHC 6 CAV 0009U.2005S (8 June 2006) by analogy. If the Court said (and it did) that where the "default" position was consecutive, then a Court would have to give "reasoned justification" to depart from that position in making sentences concurrent, then a Court must now when the "default" position is concurrency make a reasoned justification to depart from the "default" position in making sentences consecutive or partly consecutive".

13. The reasons given by the learned Magistrate for making the sentence consecutive is that the sentence does not violate the one transaction rule or totality principle. These reasons cannot be considered as reasoned justification for making the sentence consecutive.

14. This background warrants this court to exercise its powers in terms of section 256 (2)(a) of the Criminal Procedure Decree to vary the operation of the sentence ordered by the learned Magistrate. Thus 9 months imprisonment is made concurrent to the other sentence the appellant is serving.
    
15. Appeal allowed. Operation of the sentence varied.
    

Sudharshana De Silva
JUDGE

At Lautoka
12th December 2014

Solicitors: Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for Respondent