IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0007 OF 1996

BETWEEN:

NAITEQE VULICI
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT
 
On the 27th of December 1995 the appellant with a co-accused were convicted in the Labasa Magistrate Court after they pleaded guilty to an offence of Larceny. The appellant was sentenced to 9 months imprisonment and his co-accused received a suspended sentence of imprisonment.

The brief facts of the case which were admitted by the appellant was to the effect that he and his co-accused unlawfully entered an unlocked motor vehicle and removed the car stereo valued at $600. The stereo was subsequently recovered from the appellant's co-accused.

The appellant appeals against his sentence on several grounds, including, that the sentence is harsh and excessive and should have been suspended and also that he was denied the opportunity to present his mitigation to the learned trial magistrate.

As to this latter ground the Magistrate Court record of proceedings clearly records that the following mitigation on behalf of the appellant:

"Accused 1: Property was recovered. Ask Court to forgive me. Age 21, single, cut cane."

Quite clearly there is no substance at all in the appellant's complaint that he was denied the opportunity to mitigate. In any event the appellant was given every opportunity to address the Court at the hearing of his appeal.

As for the clear disparity in both the nature and the length of the sentences of imprisonment imposed on the appellant and his co-accused, the learned trial magistrate said:

"I take into consideration the accused's plea of guilty and the fact that the property has been recovered. Accused 2 (the appellant's co-accused) is a first offender, a student and is 19 years old. Accused 1 (the appellant) though only 21 years old, has 9 previous convictions and all are of a serious  and similar nature. Early this year he was convicted for Breaking, Entering and Larceny ..."

Quite clearly the learned trial magistrate in imposing different sentences on the appellant and his co-accused took into account the differences in their respective ages, and also in their past criminal records.

It is a fundamental principle in sentencing law that similar offences and offenders should attract similar penalties but, equally clearly, the principle has no application where the offending or the offender are dissimilar.

Furthermore the purpose of a suspended prison sentence is firstly, to keep an offender out of prison, and secondly, to act as a deterrent against re-offending. Therefore an offender who re-offends after he has received a suspended sentence cannot expect to have the same leniency extended to him.

I have no hesitation in saying that the learned trial magistrate was perfectly correct in treating the appellant and his co-accused differently in this case and in not considering a suspended prison sentence.

I also note in particular that the Labasa Magistrate Court has exhausted every known non-custodial measure available to it in sentencing the appellant since 1989, including, imposing a fine, then a suspended prison sentence and a binding over and still, the appellant continued to re-offend. He can expect little sympathy or leniency from the Court for his re-offending.

The appeal is accordingly dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
22nd May, 1996.
Haa0007j.96b