IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 38 OF 1990

Between:

RUSIATE LEVULA
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The Appellant pleaded guilty to an offence of House Breaking Entering and Larceny on the 12th of February, 1990. He was convicted by the Suva Magistrate Court and sentenced to 2 years imprisonment.

The offence was committed in broad daylight whilst the occupants of the house were away on a family picnic and household goods and personal items worth a total of almost $5,000 were stolen.

The appellant now appeals against the sentence on the ground that it is harsh and excessive having regard to his past good record, the minimal role which he played in the commission of the offence and his relative youth.

The appellant was born on 14th of February 1969 and had not attained the age of 21 years at the time of committing the offence. He pleaded guilty and is a first offender.

In the Magistrate Court and before this Court the appellant claimed that he merely acted as a "watchman" whilst another person (who has successfully escaped apprehension) actually committed the breaking and stealing. He received a pair of canvas shoes for his part in the burglary and that has since been returned to its rightful owner.

It is noteworthy that in both the Magistrate Court and in this Court these assertions of the appellant were never contradicted or disputed by the prosecution.

It is axiomatic that an offender should be sentenced only for the role played by him in the crime with which he has been convicted. In addition in my view it is not proper for a sentencing court to pass a sentence on the basis of disputed facts without first hearing evidence to determine the fact(s) in dispute.

The appellant has also urged on the Court an additional mitigating factor which he had omitted to mention to the Magistrate Court and which was that at the time of committing this offence he was studying Accounting as an extension student of the University of the South Pacific with some success. This was to have been his final year had he not been imprisoned.

He has already served almost 6 months of his present sentence and professes to have learnt a salutary lesson from that experience. Learned State Counsel also accepts that the sentence errs on the harsh side.

Having carefully considered this appeal and bearing in mind the various mitigating factors in the case, I am willing to give the appellant the opportunity he asks of the Court but he will not be released "scot-free".

Accordingly, the remaining sentence of the appellant namely 10 months (with earned remission) is hereby ordered to be suspended for a period of 12 months from the date of this judgment.

The immediate effect of this order is that the appellant shall be released from prison on a suspended sentence, which hopefully, will serve as a constant reminder to the appellant of his commission and conviction for this offence and more particularly of the Court's leniency towards him.

The appellant is warned that if he commits an imprisonable offence within the next 12 months he will be brought before this Court and may be required to serve the unexpired portion of this sentence (i.e. 10 months) along with any other sentence that may be imposed by the Court for his re-offending.

(D.V. Fatiaki)
JUDGE
At Suva,
25th July, 1990.
HAA0038J.90S