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Lal v State [2015] FJHC 890; HAM124.2015 (17 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO.: HAM 124 OF 2015

BETWEEN:

RAVINDRA LAL
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr.R. Kumar for the Appellant
Mr.S. Babitu for the Respondent

Date of Judgment: 17th November, 2015

JUDGMENT

1. By a letter addressed to the Deputy Registrar of this Court which was forwarded by an Assistant Superintendent of Corrections with a covering letter dated 24thJune, 2015 the Appellant has filed this appeal against the sentence imposed on him by the Magistrates Court of Fiji at Lautoka on 25thMay 2015.
   
2. The Counsel for the Respondent did not raise any objection to this appeal filed out of time only by one day. This Court granted leave and entertained the appeal.
   
3. On the 11thof May, 2015 the Appellant entered an unequivocal plea of guilty to the following counts:
   
   1. One count of Theft contrary to Section 291 of the Crimes Decree No.44 of 2009,
      
   2. One Count of Forgery contrary to Section 156 (1) of the Crimes Decree No.44 of 2009, and
      
   100. One count of Obtaining Property by Deception contrary to Section 317 (1) of the Crimes Decree No. 44 of 2009.
        
4. The facts agreed by the Appellant in the Magistrates Court are that: he had been working under the Complainant as a Clerk. On December 2012, he had stolen two cheque leaves from the Complainant and forged his signature to purchase three pine posts valued at $435.00 from Vinod Patel & Co. Ltd. Upon being questioned, he admitted the allegation at the interview conducted by Police under caution.
   
5. Having considered the agreed summary of facts, relevant law, aggravating and mitigating factors, the learned Magistrate, after conviction, sentenced the Appellant to 23 months imprisonment on the first count of Theft, 03 years imprisonment on the second count of Forgery and 25 months imprisonment on the third count of Obtaining Property by Deception. The final sentence imposed is 03 years imprisonment to be served concurrent to each other and to any unserved sentence of imprisonment with non-parole period of two years.
   
6. Aggrieved by the sentence, Appellant appeals his sentence on the following grounds:
   
   1. The learned Magistrate erred in law and in fact when he failed to consider early guilty plea and failed to give 1/3rd deduction;
      
   2. The learned Magistrate erred in law and in fact when he failed to consider his good character and his approach to restitute the loss incurred by the complainant
      
   100. The learned Magistrate erred in law and in fact as he failed to consider potential for his rehabilitation and;
        
   4. Sentence is harsh and excessive
      

and asks for significant reduction of his prison term.

Early guilty plea

7. In his sentencing remarks, the learned Magistrate has in fact considered the early guilty plea as a mitigating circumstance and has given 1/4th discount in respect of each count. Appellant's contention rather is that the learned Magistrate had fallen into error in law when he gave 1/4th discount whereas 1/3rddiscount should have been given on final total sentence.
   
8. The Sentencing and Penalties Decree does not provide for a specific proportion or 1/3rddiscount in sentencing where the offender has pleaded guilty. However, in Section 4(2)(f) it does provide for a reduction of sentence in recognition of offender's guilty plea.
   
9. In Rokini v State [2013] FJHC 680 (12 December 2013) the Court has noted as follows:
   

"Section 4(2) of the Sentencing and Penalties Decree provides that the Court must have regard to an offender's guilty plea in sentencing. This section has incorporated the long standing practice of the Courts to reduce a sentence where the accused has pleaded guilty".

10. The reasons or rationale for this practice were highlighted in number of cases. In Navuniani Koroi v State (Criminal Appeal No. AAU 0037 of 2002), the Court of Appeal, noted as follows:
    

"In most cases that is a recognition of his contention as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expenses"...

..."an early guilty plea would show to the Court that the accused person has shown remorse for the offence that he has committed.

11. Hunt CJ in R v Winchester (1992) 58 A Crim. R 345 at 350 stated as follows:
    

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some case be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452: Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in trial. Obviously enough the extension to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected)

12. Degree or proportion of discount to be given to an early guilty plea has been discussed in number of cases and it is now recognized in Fiji that 1/3rd discount of the total sentence of imprisonment is desirable as a matter of practice.
    

In Ratubalavu v State [2009] FJHC 199; (10 September 2009) the Court noted:

"It has been the practice of the Courts in Fiji to give a reduction of one third in the sentence for an early plea of guilty by an accused".

13. In the case of Mahendra Singh v. The State; Criminal Appeal No.AAU0036.2008 (1st April 2009) their Lordships of the Court of Appeal held that:
    

"A reduction of sentence by one third is the standard for a plea of guilty: Vilimone v. State [2008] FJHC 12; HAA 131-133.2007 (8 February 2008); Veretariki Vetaukulav. The State (FJCA Crim App Case No. HAA057/07); Hem Dutt v. The State(FJCA Crim App Case No. AAU0066 of 2005);Tuibua v. State (2005) FJHC 188 HAA 0677 (15 July 2005)".

14. In Suresh Lal v State HAA 020 OF 2013 [2013 November 12] it was stated that:
    

"There is no specific statutory provision in the procedural law to empower the sentencing court to consider a reduction in sentence for an early plea of guilty. That is a practice evolved in the Common Law systems to appreciate the genuine remorse of the offenders who assist the court to save the time and public resources by refraining from a full trial. The Sentencing Guidelines Council's revised guidelines in 2007 regarding the 'Reduction in Sentence for a Guilty Plea' says the 'reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation."(paragraph 2.2.). It is now widely accepted that an accused person who pleads guilty to the allegations leveled against him at the 1st available opportunity will be entitled up to a reduction of a third of his or her final sentence".

15. It is clear from the case law discussed above; discount of 1/3rdof the total sentence of imprisonment is highly desirable in Fiji in cases where the Accused has tendered an early guilty plea, irrespective of his motive in doing so, if the sentencing judge thinks that Accused's guilty plea has saved Court's time and resources.
    
16. In order to maintain uniformity in sentencing throughout Fiji, it is desirable that Courts below adhere to guidelines or norms set by a higher forum unless there are legitimate reasons, expressly given, to deviate from such a norm.
    
17. The learned Magistrate has not stated any reason why he considered ¼th discount instead of 1/3rddiscount was fitting in the circumstances of the case.
    
18. In his rationale of mitigation noted in Paragraph 4 of the sentencing order which he has applied common to all the three counts, the learned Magistrate has stated that "You pleaded guilty, saving court's time and resources from a full hearing, though not at your earliest." It is however not clear whether his allowance of 1/4th discount is related to relatively late guilty plea.
    
19. The Appellant submits that he did not plead guilty to the charges when they were first read, as the original charge sheet was defective in its particulars. It is clear that the Appellant had pleaded guilty to all the counts when the amended charge sheet, with correct figures, was filed on 11th May 2015. His intention to plead guilty is further demonstrated by the caution interview in which he had admitted the allegations.
    
20. Since there was an apparent reason that justified the Appellant not pleading guilty to the original charge sheet, guilty plea to the amended charge sheet at the earliest can be considered as an early guilty plea. This should not deprive him of the benefit of the principle that his plea ought to have been taken into account in the sentence. The learned Magistrate had in fact considered Appellant's guilty plea as an early guilty plea though he had failed to give 1/3rd discount on that account.
    
21. In these circumstances, I am of the opinion that in the light of considerations discussed above, the Appellant is justly entitled to 1/3rd discount and not 1/4thdiscount in respect of each count. To that extent, the Appellant succeeds in his appeal.
    

Restitution

22. The Appellant alleges that the learned Magistrate had failed to consider the full restitution in arriving at the final sentence.
    
23. Pursuant to Section 4(2) Sentencing and Penalties Decree, Courts should give regard to:
    
    1. the conduct of the offender during the trial as an indication of remorse or the lack of remorse; [S. 4(2)g]
       
    2. any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree; [S. 4(2)h]
       
24. In paragraph 4 of the sentencing order, the learned Magistrate has taken Appellant's remorse and restitution or his willingness to restitute into account as circumstances of mitigation in following terms:
    

"Expressed remorse and promise not to reoffend. Willingness to make restitution and had made a part restitution".

25. Therefore, his second ground of appeal fails.
    

Appellant's character and his potential for rehabilitation

26. Appellant submits that the learned Magistrate had failed to acknowledge and consider his mitigation of being a businessman and his potential for rehabilitation.
    
27. The learned Magistrate had noted that:
    

"Personal circumstances that you are 47 years old, single parent with two daughters. You are currently serving a prison term till November 2015".

...."Your personal circumstances do not deserve any credit" .

28. It is clear that when the learned Magistrate was called upon to hand down the sentence on the Appellant he had a previous conviction and was serving a prison term. When there are previous convictions Courts are not inclined to give any discount on account of good character. Learned Magistrate has correctly denied him any benefit on that account.
    
29. In Waini v State [2009] FJHC 202 HAA 006/2009 (10 September,2009) Justice Gounder noted:
    

"It is settled law that a prior criminal record does not have the effect of aggravation an offence, but it may deprive an offender of leniency or indicate more weight is to be given to retribution, personal deterrence and the protection of the community,"

30. Being in a position of a businessman is not a mitigating factor. Learned Magistrate was correct in not addressing his mind to his position as a mitigating factor and in upholding the rule of law that everyone is equal before Courts of Law. Thus this ground of appeal fails.
    

Sentence harsh and excessive

31. The Appellant in his final ground of Appeal submits that the sentence imposed on him by the learned Magistrate is harsh and excessive.
    
32. Maximum sentence for Theft is ten years imprisonment.
    

33. In Ratusili v State [2012] FJHC 1249 (1st August 2012) Justice Madigan having considered various existing decisions and formulated the tariff for Theft as follows:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

34. Having applied the principles enunciated in Ratusili, the learned Magistrate had picked a starting point of 9 months imprisonment (bottom edge of tariff band) considering the fact that Appellant had previous convictions. He had added 24 months considering aggravating circumstances of breach of trust as an employee and planned theft to reach an interim sentence of 33 months.

35. The learned Magistrate took into consideration the following mitigating factors set out in paragraph 4 of his sentencing order: remorse, restitution and willingness to restitute, cooperation with Police and guilty plea to reach the final sentence of 23 months imprisonment. The learned Magistrate has correctly applied the law and sentencing principles except for his failure to give 1/3 discount for early guilty plea.

36. Maximum sentence for Forgery is 10 years imprisonment. Tariff range is 3-6 years imprisonment [State v Prasad [2011] FJHC 218 (19 April 2011)].

37. Having applied the principles enunciated in Prasad,the learned Magistrate has picked a starting point of three years imprisonment (bottom edge of tariff band) for Forgery and had added 24 months considering aggravating circumstances of breach of trust as an employee of the complainant, financial gain he obtained from the fraud and for his planned act to reach an interim sentence of five years imprisonment.

38. The learned Magistrate took into consideration the mitigating factors set out in paragraph 4 of his sentencing order: remorse, restitution and willingness to restitute, cooperation with Police and guilty plea to reach the final sentence of three years imprisonment. The learned Magistrate correctly applied the law and sentencing principles except for his failure to give 1/3 discount for early guilty plea.

39. The offence of Obtaining Property by Deception carries a maximum sentence of 10 years imprisonment. Tariff band set for the offence in State v Millar [2014] FJHC 16 (31January 2014) is 2-5 years imprisonment.

40. Having applied the principles enunciated in Millar, the learned Magistrate has picked a starting point of two years imprisonment (bottom edge of tariff band) and had added 12 months considering aggravating circumstances of his planned act to reach an interim sentence of three years imprisonment.

41. The learned Magistrate took into consideration the mitigating factors set out in paragraph 4 of his sentencing order: remorse, restitution and willingness to restitute, cooperation with Police and guilty plea to reach the final sentence of twenty five months imprisonment. The learned Magistrate correctly applied the law and sentencing principlesexcept for his failure to give 1/3 discount for early guilty plea.

42. The learned Magistrate had not expressly identified the head count. However, he had apparently based the sentence imposed on Forgery when he applied the totality theory and made other sentences concurrent to it.

43. It was held in Naikelekelevesi v State [2008] FJCA 11; AAU 0061.2007 (27 June 2008) that 'Where there is a guilty plea, this should be discounted for separately from the mitigating factor in a case.' The learned Magistrate has correctly applied this principle.

44. The learned Magistrate has correctly identified the starting point for each count considering the objective seriousness of each offence.

45. Their Lordships of the Court of Appeal in Koroivuki v State[2013]FJCA15; AAU0018.2010 (5thMarch 2013), made the following remarks in paragraph 27.

"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 either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range"

46. The learned Magistrate is correct when he decided not to suspend the sentence as the Appellant had previous convictions and the final sentence imposed exceeded two years imprisonment. [Section (26(2) b] Therefor this ground of appeal also fails.

47. The appeal is allowed on the ground that 1/3rdreduction should have been given in respect of each count in recognition of his early guilty plea.

48. The final sentence of 3 years imprisonment is set aside and a new sentence of 32 months imprisonment substituted. I make no other changes to the sentence imposed by the learned Magistrate of Lautoka.

Aruna Aluthge
Judge

At Lautoka
17th November 2015

Counsel:

- Office of the Legal Aid Commission for the Applicant
- Office of the Director of Public Prosecution for Respondent