IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO: HAA 77 OF 2017

JOSEFA BACA
Appellant

v

STATE
Respondent

Counsel		:     	Appellant in Person	
			:	Ms. L. Latu for Respondent

Date of Hearing 	:  	29th November, 2017     
Date of Ruling	:  	14th December, 2017    

JUDGMENT

Introduction
1.	The Appellant was charged in the Magistrates Court at Tavua with one count of Burglary contrary to Section 312 (1); one count of Theft contrary to Section 291(1), respectively of the Crimes Act 2009; and one count of Breach of Bail Condition contrary to Section 26(1) (a) of the Bail Act No. 26 of 2002.

2.	The Appellant pleaded guilty to the charge on his own free will and agreed the summary of facts filed by the State. Upon being convicted, the Appellant, on 30th of May, 2017, was sentenced to 25 months’ imprisonment, 20 months to be served immediately and the remaining 5 months suspended for 2 years. 

3.	Being aggrieved by the said sentence, the Appellant filed a petition of Appeal within time on following grounds:  
I.	That the learned Magistrate failed to give 1/3 discount from the head sentence for the 25 months for the 1st count of Burglary;

II.	The learned Magistrate erred in law when he failed to consider time spent in remand;

III.	That he was denied mercy and leniency after pleading guilty on the first available opportunity thus saving the Court’s time and resources;

IV.	Sentence is manifestly harsh and excessive;

V.	That the sentencing Magistrate fell into error when he did not give much wright and attention to the mitigating factors and failed to direct himself the principles of sentencing an offender;

VI.	That the learned Magistrate erred in law and in fact when he failed to consider that the Appellant was a first offender and young offender;

VII.	That the learned Magistrate erred in law when he failed to give much weight to the first offender and young offender; and

VIII.	The learned Magistrate erred in law when he mistook the fact and imposed the sentence which is wrong in principle and all the circumstances of the case.

4.	Both Counsel filed written submissions and, in addition to that, they made oral submissions. I have considered all submissions carefully.  
The Law
5.	In Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015), the court considered the approach that should be taken in exercising appellate jurisdiction when a sentence imposed by a court below is challenged. The Court observed:
“In Kim Nam Bae v The State (AAU 15 of 1998; 26 February 1999) this Court observed:
"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 principles, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, 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)."
“In determining whether the sentencing discretion has miscarried this Court does not rely upon the same methodology used by the sentencing judge. The approach taken by this Court is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range. It follows that even if there has been an error in the exercise of the sentencing discretion, this Court will still dismiss the appeal if in the exercise of its own discretion the Court considers that the sentence actually imposed falls within the permissible range. However it must be recalled that the test is not whether the Judges of this Court if they had been in the position of the sentencing judge would have imposed a different sentence. It must be established that the sentencing discretion has miscarried either by reviewing the reasoning for the sentence or by determining from the facts that it is unreasonable or unjust”	

The Facts

6.	The facts are that between 6th day of May, 2017 and 7th day of May, 2017, at Yasiyasi, Tavua, Appellant entered into the dwelling house of the complainant as a trespasser with intent to steal therein. Whilst in the property, Appellant stole a LG brand mobile phone valued at $ 450.00, Alcatel one touch brand mobile phone valued at $360.00 and 2 video brand mobile phone valued at $ 200.00 all to the total value of $ 1010.00, the property of complainant. Appellant also breached the bail condition imposed on him in 72 /16 by the Tavua Magistrates Court by reoffending.     
  
Analysis

Grounds i & iii

7.	Grounds (i) and (iii) can be considered together as both concern the discount given to an early guilty plea. 

8.	The Appellant claims that the learned Magistrate failed to give him a 1/3 discount for early guilty plea from the head sentence, therefore he has been deprived of leniency.  

9.	It is established practice that offender’s early guilty plea should be taken into account in sentencing. This principle has been codified in our Sentencing and Penalties Act 2009, specifically in Section 4(2) (f).

10.	It appears that the learned Magistrate, at paragraph 10, 12 and 14 of the Ruling, considered the early guilty plea separately from other mitigation factors for each count.

11.	In Qurai v State [2015] FJSC 15; CAV24. 2014 [20 August 2015]. The Supreme Court held:

	“[54] There is no pronouncement of this Court in the question of the discount to be given for a guilty plea made a very early stage, although this aspect of the matter was discussed by Madigan JA in his concurring opinion in Rainima v The State [2015] FJCA 17; AAU0022.2012 (27 February 2015) at paragraph [46] where his Lordship was constrained to observe as follows:-

	“[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance. “(Emphasis added)

	[55] Having said that, his Lordship agreed with the other Justices of Appeal of the Court of Appeal (Calanchini P and Jayasuriya JA) that, given the very lenient sentence already passed on the appellant in that case, the appeal against sentence should be dismissed.

	[56] This Court takes cognizance, as it is bound to in terms of section 4(2) (b) of the Sentencing Decree, the existence in Fiji of a sentencing practice of allowing a discount of one third of the sentence for an early guilty plea. “

12.		In light of the above case authorities, it should be accepted that there is a well established practice (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea of guilty willingly made at the earliest opportunity. It appears from the final decision of the Court of Appeal that this practice can be dispensed with when the final sentence is disproportionately lenient in the circumstance of the case. 

13.		When the final sentence falls within tariff and the prison term is for a short period, this court is not inclined to interfere with the sentencing discretion of the court below.

14.	The learned Magistrate considered the early guilty plea and discounted the sentence for each count. However, after adjusting the sentence for aggravation and mitigation, he did not give a 1/3 discount. For the 1st count, a discount of 6 months had been given for a sentence of 31 months. For the 2nd count a discount is 4 months had been given for a sentence of 18 months while a deduction of 3 months had been given for a sentence of 7 months. Although the learned Magistrate has not followed the ‘1/3 practice’, the deduction for each count is reasonable in the circumstances of the case. 
15.	In my view deduction of 6 months for the head sentence would be an appropriate reduction for the guilty plea. There is no merit in this ground. 
 	
Ground ii

16.	The Appellant claims that the learned Magistrate failed to consider the time spent in remand. It appears from the court record that the Appellant was first produced in court on the 12th of May, 2017. He had been in remand since then until he was sentenced on the 6th June, 2017. Therefore, the Appellant had been in remand for 25 days. 

17.	In the Sentence Ruling, there is no mention about the time spent in remand. Unlike other mitigation circumstances, time spent in remand should necessarily have been deducted separately as it was rightfully owed to the Appellant. This ground should succeed.     

Grounds vi & vii

18.	These grounds can be dealt together. The Appellant argues that the learned Magistrate failed to consider that he is a first and young offender. 

19.	According to the court record the Appellant was not a first offender. The Prosecution had filed a report on Appellant’s Previous Convictions (PC) (in page 11), and on 12th May, 2017, this report was specifically drawn to the attention of the learned Magistrate by the prosecutor. According this report, Appellant was sentenced in 2015 for a theft case (CF 39/15), to a 6 months’ imprisonment, suspended for 2 years by the Tavua Magistrates Court.

20.	The learned Magistrate inadvertently failed to consider the PC report filed and submission made by the prosecution when he stated in his Sentence Ruing that the Appellant was a first offender and had an unblemished record. He also mistakenly considered these factors when adjusting the sentence for mitigation. Hence, there is no merit in these grounds.

Grounds iv, v & viii

21.	These grounds appear to contend that learned Magistrate’s sentence should be set aside on the basis of ‘Kim Nam Bae (supra) principles’. However, the Appellant has not articulated his arguments precisely in his submissions on those grounds. Therefore I would prefer to deal with those issues bearing in mind the ‘two tiered process’ that should be adopted by a sentencing judge.  

22.	The Court of Appeal in Sharma v State and Koroivuki v State [2013] FJCA 15; AAU18.2010 (5 March 2013) expounded the ‘two tiered process’.

23.	In Sharma v State (supra) the Fiji Court of Appeal held:
"The present process followed by the courts in Fiji emanated from the decision of this Court in Naikelekelevesi –v- The State (AAU 61 of 2007; 27 June 2008). As the Supreme Court noted in Qurai –v- The State (CAV 24 of 2014; 20 August 2015) at paragraph 48:
" The Sentencing and Penalties Decree does not provide specific guidelines as to what methodology should be adopted by the sentencing court in computing the sentence and subject to the current sentencing practice and terms of any applicable guideline judgment, leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case."
In the same decision the Supreme Court at paragraph 49 then briefly described the methodology that is currently used in the courts in Fiji:
"In Fiji, the courts by and large adopt a two-tiered process of reasoning where the (court) first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one) and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two) before deriving the sentence to be imposed."
The Supreme Court then observed in paragraph 51 that:

"The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability _ _ _."

To a certain extent the two-tiered approach is suggestive of a mechanical process resembling a mathematical exercise involving the application of a formula. However, that approach does not fetter the trial judge's sentencing discretion. The approach does no more than provide effective guidance to ensure that in exercising his sentencing discretion the judge considers all the factors that are required to be considered under the various provisions of the Sentencing Decree.

24.	Also in Koroivuki v State [2013] FJCA 15; AAU18.2010 (5 March 2013), the Court of Appeal discusses the sentencing guidelines in a similar fashion.

“[26]   The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even-handedly given in similar cases. When punishments are even-handedly given to the offenders, the public’s confidence in the criminal justice system is maintained.

[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 terms fall either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

25.	Learned sentencing Magistrate at paragraph 8 of his Ruling had correctly identified the maximum penalty for each offence. 

26.	For Count 1 (Burglary) which is the head count, the learned Magistrate identified the tariff being between 18 months to 4 years relying on the judgment in Petero Baleiwaiyevo v. State [2008] HAM 002/08 (11 July 2008) decided under the repealed Penal Code. Under the repealed Penal Code the maximum penalty for house breaking was life imprisonment whereas the maximum sentence for Burglary under Section 312 [1] of the Crimes Act is 13 years’ imprisonment. The learned Magistrate quoted a wrong tariff for Burglary.

27.	After analyzing series of authorities, Rajasinghe J in Vuli v State [2017] FJHC 17; HAA 53.2016 [23 January 2017] concluded that the tariff for Burglary under Crimes Act should be between 1 and 3 year’s imprisonment. Therefore, learned sentencing Magistrate fell into error when he identified a wrong tariff for Burglary.

28.	As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. The learned Magistrate however selected a starting point of 30 months from the upper range of the tariff without giving any reasons. He should have considered the objective seriousness of the offence based on culpability and harm factors.  

29.	For Count 2 (Theft), the learned Magistrate selected a starting point of 12 months and ended up with a sentence of 10 months imprisonment. The tariff for Theft was settled by Justice Madigan in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012), where following sentencing principles were established:

   	 (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.

30.	The Appellant is not a first offender although the learned Magistrate mistook the facts in this regard. Therefore he should come under category (ii) above.  However, the learned Magistrate correctly selected the starting point and the final sentence for Theft in line with ‘Ratusili guideline’.  

31.	Finally, for Count 3 (Breach of Bail Condition), the tariff was established in Raj v State [2008] FJHC; HAA032.2008 (18 April 2008) where the High Court prescribed a sentence of a non-custodial to 6 months imprisonment. The learned Magistrate erred when he commenced the sentence with a starting point of 10 months from outside the tariff without specifying any compelling reason.

32.	Having selected respective staring points, the learned Magistrate then at paragraphs 5 and 6 of his sentence Ruling stated mitigation and aggravating features as follows; 

Mitigating Factors

1st offender
24 years of age with 2 children, sole breadwinner of the family earning $ 200 a month. 
Early guilty plea
	
Aggravating Factors

Disobedience to lawful order
Deprivation of right to property of the complainant 

33.	In mitigation, the learned Magistrate fell into error when he considered the Appellant as a first offender. He also failed to take into consideration the full recovery of items stolen and his cooperation with police. He took irrelevant matters to aggravate the sentence. Disobedience to lawful order is already subsumed in the offence of Breach of Bail Condition. Deprivation of right to property of the complainant is also subsumed in the offence of Theft. Therefore, the learned Magistrate mistook the facts and allowed extraneous or irrelevant matters to guide or affect him. He did not take into account some relevant considerations when he identified aggravating and mitigating factors.   

34.	In view of the above, I am of the view that the final sentence is too harsh and excessive. Therefore, powers given to this Court under Section 256 (3) of the Criminal Procedure Act, I shall quash the sentence of the learned Magistrate and proceed to sentence the Appellant afresh.

35.	Taking into consideration the nature of 1st and 2nd counts, I prefer an aggregate sentence for those two charges. Having considered the seriousness of the offences, I pick a starting point of 21 months from the lower range of the tariff for Burglary. There are no aggravating factors. I deduct 2 months for accused’s personal circumstances, (24 years of age with 2 children, sole breadwinner of the family earning $ 200 a month), full recovery of items stolen and his cooperation with police. I give a further discount of 6 months for early guilty plea. (I do not give full 2/3rd discount for guilty plea because final sentence is well within tariff and lenient). I further deduct one month for the time spent in remand. The final aggregate sentence for 1st and 2nd counts is 12 months’, imprisonment. 

36.	For the third count, I impose a sentence of 4 months imprisonment, to be served concurrently with the head sentence. 

37.	Appellant has a previous conviction of similar nature in 2015. He has not taken the opportunity afforded by court on his previous conviction when he was given a suspended sentence. Therefore I do not intend to suspend this sentence.

38.	Summary

	The sentence passed by the learned Magistrate is quashed. The Appellant is sentenced afresh to 12 months’ imprisonment with effect from 30th May 2017.

Aruna Aluthge
Judge

At Lautoka
14th December, 2017